When a student files suit against their school alleging a Title IX violation arising from a Title IX investigation and proceedings, the person who made the allegations is generally not a party to the lawsuit. That person often has important information related to the allegations and the disciplinary process, however. A Texas federal court recently ordered the person who made allegations of sexual assault to comply with a subpoena for a deposition in the accused student’s lawsuit against the university.
“John Doe” sued his university for breach of contract and violation of Title IX. He alleged his ex-girlfriend falsely accused him of two separate incidents of sexual assault. According to his complaint, the hearing panel suspended him and stated he would be eligible to reenroll in 2023. The hearing panel also directed him to go to therapy and counseling and complete online Title IX training before he reenrolled. He would also remain on “conduct probation” while he was at the university. He appealed the hearing panel’s decision, but it was upheld.
He filed suit against the university in April 2022. As part of that case, he sought to depose “Jane Roe,” the woman who had made the sexual assault allegations against him. She filed a motion to quash the subpoena.
Roe argued she had already testified in the Title IX disciplinary proceedings so her deposition testimony would be duplicative and irrelevant. She further argued that she did not have any information relevant to Doe’s claims in this case. Additionally, she argued that requiring her to testify would be an undue burden because it would force her to relive the experiences and cause her “significant emotional harm and trauma.” She asked for strict limitations on the deposition if the court decided to compel it. Roe also argued that the documents requested in the subpoena were irrelevant, duplicative, or obtainable from another source, or that their usefulness was outweighed by the burden of producing them. She estimated production would cost more than $380,000 and requested cost-shifting if the court required her to comply.
Doe, however, argued the deposition was essential because of Roe’s knowledge of the investigation and disciplinary process, as well as her own credibility. He argued her evidence of undue burden was insufficient. He also argued that Roe’s objections to the document request were “boilerplate” without evidentiary support and that the documents were not available from the university because they were protected by FERPA.
The court first determined that discovery was not limited to the information available on the record of the disciplinary panel. The court further concluded that the information Doe sought was relevant and could be obtained without undue burden.
The court found the information about the Title IX investigation and proceedings Roe participated in was relevant to Doe’s claims. This information could speak to Doe’s erroneous outcome claim by providing insight on the accuracy of the outcome and Roe’s credibility. It could also shed light on his gender bias and selective enforcement claims by providing information about any disparate treatment of Roe and Doe.
The court acknowledged the deposition would “necessarily impose some hardship” on Doe, but found it would not be an undue hardship if the court imposed the following limitations. First, there would be a single deposition at a neutral sight agreed upon by the parties. The deposition was limited to a total of four hours, with no more than two attorneys present for either party. Roe would be allowed to have another person, other than counsel, present. Doe was allowed to be present, but was prohibited from communicating with anyone other than his attorneys. Doe was prohibited from seeking information about Roe’s sexual history with anyone else and was ordered not to seek information “for the purpose of embarrassment, harassment, or other improper means.”
The court also concluded the requested documents were relevant for the same reasons as the information sought in the deposition. The court agreed with Doe that Roe was the only source for much of the information sought and that most of it was protected by FERPA. Roe had made only conclusory objections and had not sufficiently shown the burden of production outweighed the likely benefit. The court ordered that Doe may compel disclosure of the information he requested except police reports and complaints he could obtain directly.
The court noted it would shift costs if they became “significant.”
Roe sought reconsideration of the order. A second treating professional provided an opinion that the deposition “could be a trauma trigger” that could result in “distress” and “negatively impact her mental health.” She also argued Doe’s need for the deposition had been lessened because she agreed to provide documents pursuant to the “pared-down document requests” and provided a FERPA release to let him get some information from the university.
The court noted it had considered the opinion of Roe’s first treating professional that a deposition would “to a reasonable degree of professional certainty” cause “significant emotional harm and trauma” when it issued the prior order. After considering that opinion, the court determined that placing limitations on the deposition was the appropriate way to address the burden on Roe considering Doe’s “considerable need” for the information. The second opinion did not change the analysis. The court also concluded that Roe’s willingness to provide documents was not sufficient to change its assessment that Doe was entitled to a deposition.
The court denied the motion to reconsider for the same reasons it denied the original order. The court acknowledged there was a burden in being questioned about allegations of sexual assault, but found that the burden did not outweigh Doe’s substantial need for information relevant to his lawsuit. The court found that the limitations placed on the deposition along with Doe’s agreement not to appear in person were the appropriate remedy. The court ordered Roe to comply with the subpoena to appear for deposition, subject to the court’s modifications.
A student facing a Title IX investigation or disciplinary proceeding faces serious and life-long consequences. A skilled Seattle Title IX defense attorney can fight for you during the investigation, disciplinary proceedings, and beyond, if necessary. Call Blair & Kim, PLLC, at (206) 622-6562 to set up your consultation.